Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae Supporting Reversal (on petition for rehearing en banc)
Argument: The panel decision conflicts with Class v. United States, __ U.S. __, 138 S.Ct. 798 (2018); United States v. Slone, 411 F.3d 643, 646-49 (6th Cir. 2005); and decisions from other federal courts of appeals and this Court should grant en banc review to address whether defendants waive the right to raise as-applied constitutional challenges to their statutes of conviction by pleading guilty and the standard of review that applies to those challenges. In conflict with District of Columbia v. Heller, 554 U.S. 570 (2008); Tyler v. Hillsdale Cnty. Sherriff’s Dep’t, 837 F.3d 678 (6th Cir. 2008) (En Banc); and decisions from other federal courts of appeals, the panel did not apply heightened scrutiny to determine the constitutionality of restrictions on individual second amendment protections, and this court should grant rehearing en banc to resolve this conflict and address important questions about the analytical framework and level of scrutiny courts must apply to restrictions on these protections.
Brief of the National Association of Criminal Defense Lawyers and the American Civil Liberties Union as Amici Curiae in Support of Petitioner.
Argument: Amici seek the Court’s confirmation of the Menna-Blackledge default rule under which a defendant’s right to appellate review of a claim that a statute is unconstitutional is not waived sub silentio through an unconditional guilty plea. The Menna-Blackledge doctrine serves the public interest in testing the constitutionality of criminal statutes. Plea bargaining dominates the criminal justice system. Post-plea challenges to unconstitutional statutes are important. The government's proposed alternatives are no substitute for direct appeal. Rule 11(a)(2) does not provide a meaningful alternative to direct appeal. Collateral review is no substitute for direct appeal under Menna and Blackledge.